Hospital of Barstow, Inc. v. National Labor Relations Board
820 F.3d 440
D.C. Cir.2016Background
- Hospital of Barstow (Barstow) and the California Nurses Association entered a consent election agreement on May 2, 2012, during a period when the NLRB lacked a three-member quorum. The agreement made Regional Director rulings final and binding.
- Nurses voted in favor of the union on May 10, 2012; the Regional Director rejected Barstow’s post-election objections and certified the union on June 29, 2012.
- Barstow bargained with the certified union; after bargaining broke down, the union filed unfair-labor-practice charges alleging Barstow refused to bargain. An ALJ and the Board found Barstow violated the NLRA.
- On review before the Board, Barstow argued for the first time that the Regional Director lacked authority to certify the election because the Board had no statutory quorum when the certification issued. The Board declined to reach the merits and found the challenge waived.
- Barstow petitioned this court. The D.C. Circuit held waiver inapplicable to challenges to agency composition and remanded because the Board had not addressed the substantive question whether a Regional Director may exercise final delegated authority under a consent election when the Board lacks a quorum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barstow waived its quorum-based challenge to the Regional Director’s certification | Barstow: challenge to agency composition may be raised on review even if not raised before the agency; Noel Canning uncertainty made preservation impracticable | NLRB: Barstow waived the challenge by bargaining with the union instead of refusing to bargain and litigating the certification | Court: No waiver; composition challenges are exempt from waiver and employers couldn’t have safely preserved the argument pre-Noel Canning |
| Whether a Regional Director can exercise delegated final authority under a consent election while the Board lacks a statutory quorum | Barstow: Consent election made Regional Director’s decisions final, so Laurel Baye forbids such final delegations when Board lacks quorum | NLRB: (did not address merits below; in related cases argued Regional Directors can exercise nonfinal delegated authority despite lack of quorum) | Court: Remanded—did not decide merits because Board never addressed the consent-election/final-delegation question in the first instance |
Key Cases Cited
- NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) (invalidated certain Presidential recess appointments to the NLRB)
- UC Health v. NLRB, 803 F.3d 669 (D.C. Cir. 2015) (deferred to Board that Regional Directors may exercise nonfinal delegated election authority absent Board quorum)
- SSC Mystic Operating Co. v. NLRB, 801 F.3d 302 (D.C. Cir. 2015) (same as UC Health regarding nonfinal delegation)
- Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009) (held plenary final authority delegated to Board panels could not survive without a quorum)
- Children’s Hosp. & Research Ctr. of Oakland, Inc. v. NLRB, 793 F.3d 56 (D.C. Cir. 2015) (remand appropriate where agency failed to address critical statutory-interpretation question)